B-208159.11, Apr 13, 1988, 88-1 CPD ***

B-208159.11: Apr 13, 1988

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United States Senate: This is in response to your request dated March 25. Our Office is authorized to decide bid protests brought by interested parties. Where a competitive solicitation has been issued for the purpose of ascertaining the cost of contracting out and the protester alleges that the resulting comparison with the cost of performing the work in-house is faulty. Thus the proposed expansion of the class of interested parties eligible to file bid protests is consistent with our goal of providing an impartial forum for the resolution of bid protests to those who have a legitimate economic interest in the outcome of the award process. 87-1 CPD Para. 59. is our view that a challenge to such a wage determination should be processed through the administrative procedures established by the Department of Labor and set forth in title 29 of the Code of Federal Regulations.

The Honorable David Pryor Chairman, Subcommittee on Federal Services, Post Office, and Civil Service, Committee on Governmental Affairs, United States Senate:

This is in response to your request dated March 25, 1988, for our comments on a proposed bill to allow federal employees affected by a contracting agency's decision to contract out for services to file a bid protest with our Office challenging the agency's decision. We support the proposed bill.

Under the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. Secs. 3551 et seq. (Supp. III 1985), our Office is authorized to decide bid protests brought by interested parties, defined in CICA as any actual or potential bidder or offeror whose direct economic interest would be affected by the award or failure to award the challenged contract.

In the context of decisions whether to contract out under Office of Management and Budget (OMB) Circular No. A-76, we currently review protests brought by disappointed bidders or offerors challenging an agency's decision not to contract out; where a competitive solicitation has been issued for the purpose of ascertaining the cost of contracting out and the protester alleges that the resulting comparison with the cost of performing the work in-house is faulty. Contract Services Co., Inc., 65 Comp.Gen. 41 (1985), 85-2 CPD Para. 472.

Under the proposed bill, our review would be expanded to include challenges to decisions to contract out by a representative of a majority of the affected federal employees, as determined pursuant to regulations issued by our Office, or any recognized labor organization as defined in the proposed bill. The proposed bill also specifies that such protests may include challenges to the relevant performance work statement or wage determinations used in the contracting out decision.

Since a bidder may protest an agency's cost comparison in connection with an OMB Circular No. A-76 decision, we think that the employees should also be authorized to protest on the same basis. Thus the proposed expansion of the class of interested parties eligible to file bid protests is consistent with our goal of providing an impartial forum for the resolution of bid protests to those who have a legitimate economic interest in the outcome of the award process.

To the extent the proposed bill specifically authorizes challenges to wage determinations included in a Circular No. A-76 solicitation, it has been our policy not to review the correctiveness or accuracy of Department of Labor wage determinations issued in connection with solicitations subject to the Service Contract Act, 41 U.S.C. Sec. 351 (1982). Gerald Moving & Warehousing Co., B-225618, Jan. 14, 1987, 87-1 CPD Para. 59. is our view that a challenge to such a wage determination should be processed through the administrative procedures established by the Department of Labor and set forth in title 29 of the Code of Federal Regulations. We believe that such matters are best handled by the Department of Labor which issues the wage determination and has the expertise in the area. Consequently, we recommend that section (1)(B)(ii) be deleted from the bill.